TaxTMI 
TaxTMI 
2016 (7) TMI 736
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....red in law and on facts in confirming the penalty u/s 271 (1 )(c) on claim of depreciation on Temporary Wooden structures like interiors, glow signs etc; taken over from Erstwhile GTB upon amalgamation pursuant to GOI notification, of Rs. 7,13,13,797/- @ 100%. The penalty levied is wrong and bad in law and has to be deleted. 2. The appellant contends that it had offered explanation which has not been found to be false nor unsubstantiated. The explanation is supported by facts and details as well as legal provisions for claim of depreciation in the case of amalgamation. Therefore, the allegation of the CIT(A) as well as AO that the assessee has furnished inaccurate particulars of income is wrong and bad in law and on facts. There is no ca....
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....f amalgamation is governed by section 43(1), 43(6) Explanation 2 as well as section 32. The AO has mechanically substituted rate of depreciation @ 15% instead of 100%. Therefore also on such debatable issue, no penalty should be levied. 6. The above grounds are independent and without prejudice to one another." 2. Ld. Assessing Officer has initiated penalty proceedings on a claim of depreciation by the assessee as the Ld. A.O. found explanation offered by the assessee to be false / unsustainable. Ld. A.R. submitted that this Tribunal in I.T.A. No. 21/Del/2011 in assessee's own case, for the quantum appeal, has deleted the disallowance made by the Assessing Officer on account of depreciation. The Hon'ble Tribunal held as under: "5. ....
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....amalgamating company. There is nothing on record to show that the assessee bank is not entitled for depreciation @ 100% in respect of the interiors which was purely wooden structures and the full details in respect of this claim of the expenditure have been filed at the time of original assessment proceedings. The Assessing Officer after considering the details filed allowed the claim in the original assessment proceedings. In the circumstances, the claim for deduction of depreciation cannot be withdrawn by exercising power under Section 154 of the Act based on the change of opinion. The Hon'ble Supreme Court in the case of Mepco Industries Ltd. Vs. CIT, 319 ITR 208, held that the right to rectify the mistakes under Section 154 of the Act c....
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....cts or in law cannot be dealt with as a mistake apparent from the record. Therefore, following the ratio laid down in the above case, we hold that the issue whether the deprecation @100% or 15% on interiors which are purely wooden structures is a debatable point as it requires examination of details and cannot be rectified by exercising the power vested under Section 154 of the Act. Therefore, we quash the order of the Assessing Officer dated 30th November, 2007 passed under section 154 of the Act and allow this ground of appeal." 3. On perusal of above order in the quantum appeal, in assessee's own case, it is observed that the order passed u/s 154 of the Act date 30.11.2007 has been quashedby this Tribunal. This Tribunal has observed t....
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....dealing with this issue, in its order has held as under: "5. So far as the second issue is concerned, at the time of filing of return by OBC the losses of EGTB of Rs. 111,45,95,050/- which were available for set off were claimed in the return. However, upon subsequent assessment of EGTB, the losses were assessed at Rs. 54,38,96,252/-. Therefore, there was consequential reduction in the set off of losses of EGTB. The additions made .in the case of EGTB for the A Y 2005-06 were deleted by the appellate authorities except-the claim of depreciation on "Furniture and Fixture" of Rs. 7,13,13,797/-. After appeal effect, the losses of EGTB eligible for setoff against the appellant is Rs. 104,32,81,253/- (Rs.111,45,95,050/- minus Rs. 7,13,13,797/....